Is the iPhone NDA About Patents?

Thursday, 7 August 2008

The obvious reason for iPhone developers’ frustration over Apple’s continuation of the iPhone SDK NDA is that it’s blocking open collaboration. Cocoa developers are used to having public mailing lists, weblog posts, and third-party reference books at their disposal. The NDA forbids this sort of openness. But the other thing is it seems baffling; it’s hard to see how Apple benefits by not lifting the NDA.

DF reader Jeb emailed yesterday with what strikes me as the most credible explanation I’ve heard so far:

At my company, our lawyers advised us to keep what we considered
more-or-less public software under NDA for a very long time
because demoing software to someone under NDA, no matter how many
people it is, avoids “publishing” the software and any inventions
contained therein. We know Apple’s been building up a patent
strategy around multi-touch; maybe their lawyers believe there are
patentable inventions described in the iPhone SDK and they are
telling Apple to keep everything under NDA until they know
provisional patents can be filed within a reasonable amount of
time (you get a year after publishing in the US, but in the EU, I
think you forfeit any patent claims once your invention is
“published”).

It’s like, it doesn’t matter at all how broad/leaky the NDA
process is, in the eyes of the USPTO, every invention in the
iPhone SDK is a non-published invention and will continue to be so
until the NDA is lifted.

So as if the entire field of software patents weren’t already enough of a drag on the industry, we may well have it to blame for the NDA.